The Basic Structure of the Indian Constitution
We know that the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens ...
The idiom“basic structure” itself cannot be found in the Constitution of India. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament.Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. So limited amending power itself is a basic feature of the Constitution.
We know that the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of theessential features of the Constitution. According to Article 21 of the Constitution, no person in the country may be deprived of his life or personal liberty except according to procedure established by law.
We the people look forward that fundamental in the governance of the country, the State to secure a social order for the promotion of welfare of the people. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. According to Article 39 (b) and (c) of the Directive Principles of State Policy states that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few. Therefore The Government shall work for the people welfare, people democracy and people sovereignty.
- The Preamble of the Constitution of India.
- We may assume that the Preamble of the Constitution of India is clearly talks about the, the Basic Structure of the Indian Constitution that is SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens
- JUSTICE, social, economic and political;
- LIBERTY of thought, expression, belief, faith and worship;
- EQUALITY of status and of opportunity;
- and to promote among them all
- FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation
- The basic features of the constitution of India is may treated as a basic structure of the constitution.
- No doubt that The Indian constitution is unique in its contents and spirit. However the constituent power of parliament under article 368 does not enable it to alter the basic structure of the constitution as per the KesavanandaBharati case in 1973.
- Written constitution
- Blend of rigidity and flexibility
- Federal system with unitary bias
- Fundamental rights/Human Rights
- Secular state
- Single Citizenship
- Independent Bodies
- Three Tier Government
- Parliamentary form of Government
- Integrated and Independent Judiciary
- Sovereign Socialist Secular Democratic Republic
- Citizens security
- Welfare state
- People sovereign
- Unity and integrity
- The right to equality before the law and equal
protection of the laws
Most importantly seven of the thirteen judges in the KesavanandaBharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament's constituent power was subject to inherent limitations. Parliament could not use its amending powers under Article 368 to 'dam age', 'emasculate', 'destroy', 'abrogate','change' or 'alter' the 'basic structure' or framework of the Constitution.
According to the Part XX, article 368 of the Constitution of India, the amendment of The Constitution; Power of Parliament to Amend the Constitution and procedure. It mentioned that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of Constitution in accordance with the procedure laid down in this article 368.
According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance.
Hence Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it.
The sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements. One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.
Different judge keep different views regarding to theory of basis structure. But at one point they have similar view that parliament has no power to destroy, alter, or emasculate the 'basic structure' or framework of the constitution. "If the historical background, the preamble, the entire scheme of the constitution and the relevant provisions thereof including article 368 are kept in mind then there can be no difficulty.
These words apply with greater force to doctrine of the basic structure, because, the federal and democratic structure of the constitution, the separation of powers, the secular character of our state are very much more definite than either negligence or natural justice.".So for the protection of welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory.
Basic Features of the Constitution according to the Kesavanada verdict each judge laid out separately, what he thought were the basic or essential features of the Constitution.Sikri, C.J. explained that the concept of basic structure included:
Supremacy of the Constitution
Republican and democratic form of government
Secular character of the Constitution
Separation of powers between the legislature, executive and the judiciary
Federal character of the Constitution
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:
Sovereign democratic republic
Justice - social, economic and political
Liberty of thought, expression, belief,
faith and worship
Equality of status and the opportunity.
Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and KesavanandaBharati, expressed the view:
"The existence of a remote judicial control may only act as a brake against hasty and unreasonable legislative and executive action and as a form of guarantee to the public against instability. The stability of the Constitution stabilizes the State.
Basic Features of the Constitution according to the Election case verdict, each judge expressed views about what amounts to the basic structure of the Constitution: Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
Sovereign democratic republic status
Equality of status and opportunity of an individual
Secularism and freedom of conscience and religion
'Government of laws and not of men' i.e. the rule of law
Justice H.R. Khanna-
democracy is a basic feature of the Constitution and includes free and fair elections.
Basic structure doctrine reaffirmed
- the Minerva Mills
In Minerva Mills case the Supreme Court by majority by 4 to 1 majority struck down clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.
In L. Chandra Kumar case a larger Bench of seven Judges unequivocally declared "That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".